Roger Goodell always makes the same mistake: He prizes his own authority over fairness to others. This is a psychological flaw, not a legal principle, and the NFL ought to quit defending it in court.
The pattern is well-established: The commissioner commits needless small acts of despotism that wind up causing federal litigation sieges and harm the league’s integrity rather than sustain it.
What would it have taken to give the Dallas Cowboys’ Ezekiel Elliott a fair hearing against accusations of domestic violence? Not much. Just something shy of a total Orwellian mind-screw. Instead, the case has become a typical morass, a perfect example of the rigged process over which Goodell presides. Judge Paul A. Crotty of the Southern District of New York not only delayed Elliott’s six-game suspension Tuesday evening, but did so with a sharply worded ruling that found “significant issues implicating the fundamental fairness of the arbitration proceeding.”
The NFL’s courtroom dramas all have the same thing in common, whether the case is Elliott’s or Tom Brady’s: Questions of guilt or innocence become totally obscured by the league’s attempt to tilt the case.
“This has been a persistent and consistent theme in the NFL’s scorched-earth tactics against its players” in disciplinary hearings, sports attorney Daniel Wallach said. “It continually trips over itself when it doesn’t need to. It is snatching defeat from the jaws of victory with ham-handed litigation tactics.”
Crotty’s ruling is one more addition to a rising pile of legal rebukes to Goodell over his abuse of power. In September, Judge Amos Mazzant of the Eastern District of Texas laid into Goodell and his handpicked rubber-stamp arbitrator Harold Henderson for turning “a blind eye” to basic facts and fairness in Elliott’s case. Next up will be Judge Katherine Polk Failla, who will hear more arguments on whether to enforce Elliott’s suspension by Oct. 30 — and this time the NFL may well find that it has exhausted its favorite ploy.
The NFL’s legal strategy on Goodell’s behalf is always the same: It counts heavily on the deep reluctance of judges to interfere in arbitration under labor law. League lawyer Dan Nash argues that because NFL players granted Goodell broad disciplinary powers in Article 46 of the Collective Bargaining Agreement, they surrendered the right to any judicial intervention. But Crotty disagreed. “That is quite wrong,” he ruled.
Can Goodell go too far? Is there no way to check him? This is an important question, not just for the NFL, but for all employees, and frankly, all judges. Arbitration can only be overturned on very narrow grounds: if the bench finds misconduct or “fundamental unfairness.”
In Deflategate, Brady’s lawyers argued long and hard that he was treated unfairly, and district court Judge Richard Berman agreed, finding “several significant legal deficiencies” in Goodell’s six-game suspension. But Brady then lost at the appellate level when a three-judge panel found Brady’s contention was “hypertechnical” and not potent enough.
Elliott appears to have a much stronger case. His argument is in no way hypertechnical; it’s raw, and blunt. The league denied Elliott basic access to the testimony against him by his accuser. It also hid the fact that league investigator Kia Roberts declined to recommend suspension because she found the accuser not credible. According to Judge Crotty’s ruling, Elliott was “deprived of opportunities to explore pertinent and material evidence.”
What’s so baffling about these unfair tactics is that they don’t strengthen the NFL’s disciplinary authority. They actually weaken it and open the league to a whale of a legal challenge.
“What the league should be doing is ensuring that the players and the union have access to the same documents and witnesses and materials,” Wallach said. “If a level playing field is ensured from an evidentiary standpoint, then rulings from Goodell are less vulnerable.”
The NFL has fallen into a terrible legal cycle because of one man’s personal exigencies. Goodell needed a public relations stand on a domestic violence case to make up for earlier botchings, just as he needed Deflategate to even the score with owners who thought he had botched Spygate. So Elliott inherited the cycle of unfairness, and it has become all but impossible to tell whether he’s guilty or innocent, and now both sides probably will end up bringing in their heavy legal hitters, Paul Clement for the NFL and Ted Olson for the players’ union, to file spiraling appeals as they did in Deflategate.
NFL owners should have reined in Goodell long ago. Instead they let him wander on to this shaky legal ground, and now a judge may do their reining for them. If Goodell can behave this way, then what’s to prevent other heads of corporate entities from railroading their employees? Your work cubicle could be next.
Goodell’s conduct has eroded basic faith in arbitration, and it seems inevitable that a court will restore it. The arbitration system was written to declutter the courts and settle labor disputes more efficiently. It wasn’t written to strip American employees of basic citizenship rights and turn them into residents of some abstract legal Siberia. This was the point that Olson made on Brady’s behalf during the New England quarterback’s federal appeal, and in Elliott’s case, it looks like a winner. As Olson said, Goodell’s arbitration standards “are damaging and unfair . . . to collective bargaining agreements everywhere.”
For more by Sally Jenkins, visit washingtonpost.com/jenkins.
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